Don't fix California's Death Penalty, Replace It! But with what?

Jon Streeter, Bill Hing,Diane Bellas, make the case for why California's broken death penalty should be replaced rather than repaired, in an op-ed in today's San Francisco Chron. Streeter, Hing, and Bellas, a leading criminal defense lawyer, law professor, and public defender respectively, served on the California Commission on the Fair Administration of Justice, make mince meat of Senator Tom Harmon's recent oped calling for an end to lengthy appeals in order to fix the death penalty.

As the senator states, "the death penalty system in California is broken and unworkable." We found that it now takes an average of 25 years for death penalty cases to move through the mandatory court review process. However, the reason these appeals take so long is not because of "legal maneuverings." The primary cause of these delays is the lack of attorneys willing to take these cases and the lack of court staff to review them. A person sentenced to death today in California will wait eight to 10 years before an attorney will be appointed to represent him in a legal challenge to his conviction. Without an attorney, there are no legal maneuverings at all....

How do we fix all of these problems? With money. Our commission considered myriad measures to reform the state's death penalty system and recommended several. If all of the reforms we recommended were implemented, the state would reduce the risk of wrongful conviction while still being able to process death penalty cases more quickly.

We currently pay $137 million each year for the state's dysfunctional death penalty. Implementing our recommendations would cost an additional $95 million, for a total price tag of $230 million each year. Because it would take many years to increase the pace of review of death penalty cases, we would still need to build a new facility to house the people now on Death Row, at a cost of $400 million.

The attorneys propose replacing the death penalty with "the sentence of permanent imprisonment: life with absolutely no possibility of parole." Here I would dissent slightly. While we are asking Californians to take a realistic look at how we punish the most serious crimes let us level with them completely and acknowledge that permanent imprisonment with no hope of parole is not necessary to assure public safety, makes the process of incarceration itself nightmarish for both inmates and staff, and is considered a human rights violation in the rest of the civilized world. A sentence of life imprisonment, with parole only after 25 years, the sentence for first degree murder in California, is plenty of punishment. We already keep most of our non-capital murderers in prison for well over 30 years, and we need to reduce those excessive sentences. There is a long history of making bad murder law in order to limit the death penalty, let's not do it again.

We need a whole new scale. Make 25 to life the new sentence for first degree murder with special circumstances. Move regular first degree murder back to 20 years to life (keep in mind prior to 1980, most 1st degree murderer's were released within 10 years), and move second degree murder to a determinate sentence of 10 to 20 years.